United States v. Wesley Alan Carr

80 F.3d 413, 1996 U.S. App. LEXIS 5521, 1996 WL 137557
CourtCourt of Appeals for the Tenth Circuit
DecidedMarch 25, 1996
Docket95-8009
StatusPublished
Cited by112 cases

This text of 80 F.3d 413 (United States v. Wesley Alan Carr) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Wesley Alan Carr, 80 F.3d 413, 1996 U.S. App. LEXIS 5521, 1996 WL 137557 (10th Cir. 1996).

Opinion

*415 KERN, District Judge.

Appellant Wesley Alan Carr appeals the District Court’s denial of his motion to withdraw his plea of guilty. Appellant contends that his plea was not voluntary, that he did not receive effective assistance of counsel, and that the District Court’s denial of his withdrawal motion was improper.

I. FACTS

On March 24, 1994, a grand jury returned an indictment against Appellant Wesley Alan Carr and four codefendants 1 for their alleged participation in a conspiracy to distribute marijuana, methamphetamine, and cocaine in Colorado and Wyoming. Appellant was charged in five counts for his alleged role in heading the criminal organization that distributed the drugs. Two of the codefend-ants, Sivertson and Iverson, pleaded guilty and were sentenced in August 1994. To the three remaining defendants, including Appellant, the government proposed a “package deal” plea bargain: in exchange for all three defendants pleading guilty to the conspiracy charged in Count One of the indictment, 2 Contreras would receive a ten-year sentence, Cunningham would receive a five-year sentence, and Appellant would receive a twenty-year sentence. Both Contreras and Cunningham immediately pleaded guilty.

Appellant filed a signed plea agreement with the court in which he agreed to plead guilty to Count I of the indictment. At Appellant’s change of plea hearing on June 13,1994, District Judge Brimmer scrupulously administered a Rule 11 protocol, Fed. R.Crim.P., which included the following exchanges:

THE COURT: Have you had a full and ample opportunity to discuss these matters with Mr. O’Donnell as your court-appointed defense counsel?
THE DEFENDANT [Appellant]: Yes, I have.
THE COURT: Are you fully satisfied with the services of Mr. O’Donnell?
THE DEFENDANT: Yes.

Appellant App. Vol. I. at 159-60.

THE COURT: All right. Now, tell me this: Is this plea of guilty a voluntary plea?
THE DEFENDANT: Yes, it is.
THE COURT: Is anybody forcing you to plead guilty?
THE DEFENDANT: No.
THE COURT: Is Mr. O’Donnell forcing you to plead guilty?
THE DEFENDANT: No, he’s not.
THE COURT: Is it your own idea?
THE DEFENDANT: Yes.
THE COURT: Is it a free act on your part?
THE DEFENDANT: Yes, it is.
THE COURT: Are any circumstances of any kind, economic or otherwise, forcing your guilty plea?
THE DEFENDANT: No, they’re not, Your Honor.

Appellant App. Vol. I at 161. Despite Appellant’s apparent desire to enter a guilty plea at the June 13th hearing, Judge Brimmer rejected Appellant’s plea because of Appellant’s reluctance to admit to stipulated factual bases for the plea.

However, upon motion by Appellant to reopen the proceedings, the court gave Appellant another chance the following day. This time, Appellant was more forthcoming in admitting his involvement in a conspiracy to deliver controlled substances, and he executed a successful guilty plea to Count One of the indictment. At this second hearing, Judge Brimmer again inquired into the vol-untariness of the plea:

THE COURT: ... You’re still guilty today?
THE DEFENDANT: Yes, sir.
THE COURT: And it is voluntary?
THE DEFENDANT: Yes, sir.
THE COURT: And nobody has forced you in the meantime to plead guilty?
*416 THE DEFENDANT: No, Your Honor.
THE COURT: And you’re still pleading guilty because you are?
THE DEFENDANT: Yes, sir.
THE COURT: All right. Court finds that the plea of guilty is a voluntary plea and that there is a factual basis for the plea of guilty.

Appellant App. Yol. I at 175.

Three months after he entered his guilty plea, Appellant filed a motion to withdraw his plea, alleging that it was entered as a result of coercion and duress. The alleged sources of this coercion and duress were Appellant’s own counsel as well as codefendants and their counsel. The court denied the motion. Appellant later filed another motion to withdraw his plea, alleging, in addition to the previous claims, ineffective assistance of counsel during his first attempt to withdraw his plea. The court denied this motion as well.

II. DISCUSSION

Appellant now appeals the District Court’s denial of his motion to withdraw his guilty plea. Appellant contends that his plea was not voluntary, that he did not receive effective assistance of counsel, 3 and that the District Court’s denial of his withdrawal motion was improper.

A. Voluntariness of Guilty Plea

We review the voluntariness of Appellant’s guilty plea de novo. United States v. Libretti, 38 F.3d 523, 529 (10th Cir.1994), aff'd, — U.S. -, 116 S.Ct. 356, 133 L.Ed.2d 271 (1995). “The longstanding test for determining the validity of a guilty plea is ‘whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.’ ” Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970)). A guilty plea entered upon the advice of counsel is invalid if the plea was coerced, Osborn v. Shillinger, 997 F.2d 1324, 1327 (10th Cir.1993), or if the advice of defendant’s counsel was not within the range of competence demanded of attorneys in criminal cases, Hill v. Lockhart, 474 U.S. at 56, 106 S.Ct. at 369; McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970).

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Bluebook (online)
80 F.3d 413, 1996 U.S. App. LEXIS 5521, 1996 WL 137557, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-wesley-alan-carr-ca10-1996.